In Italy, antitrust litigation is on the rise.
New rules have made it easier for claimants to bring actions for antitrust damages. Recent infringement decisions, in terms of their temporal scope and the products involved, concern a wide range of potentially affected parties. There has therefore been a significant increase in the number of cases, and an increase in general awareness of the possibility of bringing actions for antitrust damages.
However, the new rules (and the related novel legal issues) are still being tested by courts and practitioners. Courts are probably not sufficiently staffed to handle this increasing workload, and the case law is developing slowly.
Please see the Italian Trends & Developments chapter in this guide for further details.
The most important recent development has been the adoption of Legislative Decree No. 3 of 19 January 2017 (the “Damages Decree”), implementing Directive No. 2014/104/EU on actions for antitrust damages. The Damages Decree introduced a number of substantive and procedural provisions to make it easier for claimants to bring actions for antitrust damages. The provisions of the Damages Decree, including in light of general principles of Italian law, are discussed in the remainder of this Law & Practice Section.
Please see the Italian Trends & Developments chapter for an overview of key case law developments.
The main statutory basis for private antitrust claims is the Damages Decree. Article 33(2) of Law No. 287 of 10 October 1990, concerning claims for damages for infringements of competition law, is also a statutory basis for such claims.
Claims can be based on previous findings of an antitrust infringement by the Italian Competition Authority (ICA) or the European Commission (the “Commission”) (so-called follow-on claims), or made on a standalone basis (in which case claimants have to also demonstrate the infringement itself).
As an alternative, private antitrust claims may be brought on the basis of general provisions of Italian civil law, including:
Pursuant to Article 18 of the Damages Decree, jurisdiction to decide over claims arising from infringements of EU and Italian competition law belongs to the Specialized Sections for business matters of the first instance and appeal courts of Milan, Rome and Naples. In particular:
Pursuant to Article 7(1) of the Damages Decree, decisions of the ICA on finding an infringement of EU and Italian competition law are binding on national courts once they are final (ie, are confirmed after judicial review or no longer subject to appeal). The binding effect of final ICA decisions concerns the nature of an infringement and its material, personal, temporal and territorial scope. Those aspects of final infringement decisions cannot be questioned before civil courts.
Before the Damages Decree was adopted, the Italian Supreme Court ruled that the ICA’s final decisions were to be considered as a form of preferred evidence of an infringement (prova privilegiata). This principle remains applicable in cases where the Damages Decrees does not apply. In practice, this principle may imply that the burden of proof is on the defendant to rebut the existence of an infringement.
The binding effect of final ICA decisions is nonetheless limited to the existence of an infringement.
In all cases, claimants are required to demonstrate:
The ICA may play a limited role before civil courts. Pursuant to Article 4(1) of the Damages Decree, as well as Article 213 of the Italian Civil Procedure Code, courts may order the ICA to disclose evidence from its investigation file only to the extent that the parties or third parties are reasonably not in a position to provide it. The ICA may submit observations to the civil court as to the proportionality of the disclosure request.
Additionally, under Article 14(3) of the Damages Decree, courts may seek assistance from the ICA to determine the amount of damages to be awarded to the claimants arising from the infringement (in this respect, see also 8.1 Damages: Assessment, Passing on and Interest).
Similar principles apply to Commission decisions (under Article 16 of Regulation (EC) No 1/2003). In contrast, decisions of foreign national competition authorities are not binding on Italian courts. They merely qualify as prima facie evidence, to be assessed together with any other available evidence.
In principle, under the general rule set out in Article 2697 of the Italian Civil Code, claimants bear the burden of proving the constituent facts on which their claim is based, while defendants are required to provide any appropriate evidence in rebuttal. In the context of antitrust litigation, this general rule implies that claimants seeking damages must prove the unlawful conduct, the damages they suffered, and the causal link between the conduct and damages.
Moreover, the standard of proof incumbent on the claimant in civil proceedings requires the claimant to prove its case on a balance of probabilities, namely, on the “more likely than not” criterion (più probabile che non).
The Damages Decree sets out specific provisions for civil antitrust cases, which are intended to reverse or otherwise ease the burden of proof for claimants.
In particular, to the extent that they are applicable in each given case:
At the time of writing, the above-mentioned specific rules of the Damages Decree have not yet been applied in practice before civil courts in Italy.
The pass-on defence is available and governed by Articles 10 to 13 of the Damages Decree. It provides that defendants bear the burden of proof, which they can discharge by seeking disclosure of evidence from claimants or third parties.
This is in line with general principles of Italian law, according to which:
The statute of limitations is governed by Article 8 of the Damages Decree, which provides that the limitation period for bringing an action for damages is five years, starting from the moment when:
This is broadly in line with general principles of Italian tort law.
In addition, the Damages Decree provides that the limitation period is suspended if the ICA opens an investigation into the relevant conduct, until one year after the ICA infringement decision becomes final.
The length of antitrust litigation largely depends on the complexity of the analysis required to assess the infringement (particularly in the case of standalone claims) and the damages.
In general, a first-instance case takes no less than two to three years.
The provisions of the Damages Decree, which is the main statutory basis for individual actions (see 2.1 Statutory Basis), also apply in the case of class actions.
Moreover, depending on when the relevant infringement occurred, the specific statutory basis for class actions is as follows.
In addition to class actions, Italian law provides for representative actions to protect the collective interests of consumers. This procedure, which is governed by Legislative Decree No. 28 of 10 March 2023, implementing Directive (EU) 2020/1828, is only available to consumers represented by “qualified entities”, namely certain consumer associations and independent public entities (notably including the ICA).
Representative actions apply to disputes concerning, inter alia, unfair business-to-consumer commercial practices. Accordingly, there seems to be scope for this procedure to be used in the context of private antitrust litigation.
Class actions in Italy are based on an opt-in mechanism. The mechanism differs depending on the applicable procedure (see 4.1 Statutory Basis):
As far as representative actions are concerned, the “qualified entities” (see 4.1 Statutory Basis) are entitled to bring them on their own, without a power of attorney granted by the relevant consumers.
The Italian legal framework concerning class or representative actions does not make a distinction between direct and indirect purchasers.
Based on general principles of Italian law, both direct and indirect purchasers are entitled to bring them. However, indirect purchasers would of course be required to prove that the relevant damages were passed on to them by the direct purchasers.
The first step in a class action is a certification procedure aimed at assessing the eligibility of the claim.
While there are slight differences between the two types of class actions available (see 4.1 Statutory Basis), a claim will generally be held inadmissible if:
Representative actions also entail a certification procedure. Certification is denied under similar circumstances, and also if:
Regarding jurisdiction, Regulation (EU) No. 1215/2012 (“Brussels I-bis”) provides that, as a general rule, Italian courts have jurisdiction when the defendant is domiciled or resident in Italy, or – in the case of multiple defendants that are domiciled in different member states – one of the defendants is domiciled or resident in Italy. Moreover, considering that antitrust claims are considered to be tort claims, Italian courts also have jurisdiction when the relevant “harmful event” occurred in Italy. For additional specific rules on the courts having jurisdiction for antitrust claims, see also 2.2 Courts.
The applicable law is governed by Article 6 of Regulation (EU) No. 864/2007 (“Rome II”). In particular, in the case of non-contractual obligations arising out of an act of unfair competition, the applicable law will be that of the country where the competitive relations or the collective interests of consumers are, or are likely to be, affected.
Moreover, in the case of non-contractual obligations arising out of a restriction of competition:
Documents may be disclosed under the general rules of the Italian Civil Procedure Code (Article 210 onwards) and/or under the special rules for antitrust litigation in the Damages Decree (Articles 3 to 5).
Under Article 210 of the Italian Civil Procedure Code, the party seeking disclosure has to show that the documents sought are necessary and indispensable for the case. Disclosure requests have to be specific and can only concern documents that are known to be existing.
The Damages Decree, and the courts’ recent decision-making practice in implementing its provisions, seems to have extended the scope of disclosure in civil antitrust cases. The disclosure request, which should be specific and comply with the principles of proportionality and “subsidiarity” (meaning that the document sought should not be accessible otherwise), may concern “evidence” as well as “categories of evidence”. In practice, this means that broader requests can be made, and that disclosure may not be limited to documents.
The Damages Decree also contains specific provisions concerning disclosure of confidential documents, including documents relating to leniency statements, settlement submissions and ongoing investigations of the ICA. In relation to confidential documents, the Damages Decree provides a non-exhaustive list of remedies that courts may apply to ensure that confidentiality is protected (such as the possibility to submit redacted versions of confidential documents, and to organise in camera hearings and data rooms). Leniency statements and settlement submissions cannot be disclosed under any circumstances (see also 6.3 Leniency and Settlement Agreements), while other documents relating to ICA investigations can only be disclosed when the investigations are over. These rules aim to ensure that public enforcement of antitrust laws is not prejudiced by private enforcement.
Failure to comply with a disclosure order has different consequences depending on the legal basis for the request. Under the general rules of the Italian Civil Procedure Code, failure to disclose documents can result in courts drawing a negative inference if the disclosure order was addressed to a party to the proceedings. Under the Damages Decree, in the case of failure to comply with a disclosure order, courts can draw a negative inference and also issue an administrative fine ranging between EUR15,000 and EUR150,000, regardless of whether the addressee of the disclosure order is a party to the proceedings.
Under Article 3(6) of the Damages Decree, communications between external counsel and their clients are legally privileged and can be withheld from disclosure.
In contrast, legal privilege does not apply to communications with in-house lawyers in Italy.
Pursuant to Article 4(5) of the Damages Decree, leniency statements and settlement submissions are protected from disclosure.
However, claimants may submit a reasoned request to have access to certain documents to make sure that they effectively relate to leniency statements or settlement submissions.
Witness evidence is rare in the context of antitrust litigation in Italy, as courts tend to rely on documentary and expert evidence.
However, under the general rules of Italian law, parties may seek a court order allowing a witness to provide evidence on specific facts to be set out in a precise and concise form. Witnesses are not allowed to provide opinions or subjective assessments. Several limitations apply to witness evidence concerning contracts or circumstances otherwise resulting from written evidence.
The request for witness evidence must clearly indicate the name of the witness as well as the specific facts on which the witness will be questioned by the court at a specific hearing (see 7.2 Expert Witness Role and Procedure). The other party may request to ask additional questions to the same witness, or to hear other witnesses to provide evidence in rebuttal.
The relevant questions are asked by the court during a specific hearing scheduled for that purpose. Counsel to the parties is only allowed to request the court to consider asking follow-up questions or seeking clarifications.
If the witness fails to appear at the relevant hearing, the court may order that the witness be summoned again or even be compelled to appear. Failure to appear without a justification may result in the witness being fined up to EUR1,000.
Considering the complexity of private enforcement proceedings, particularly with respect to the quantification of damages, the role of experts is crucial.
Courts routinely appoint their own independent experts, either of their own motion or upon request by the parties. Court-appointed experts are instructed to answer a set of specific questions set out by the court, normally after consultation with the parties.
The parties normally also appoint their own experts.
All experts participate in a parallel procedure (“consulenza tecnica d’ufficio”) by attending meetings, accessing records and submitting technical briefs. The court-appointed expert has extensive powers to organise the expert phase, and both the court-appointed expert and the parties can resort to the judge to solve matters on which there is no agreement between the experts or the parties (such as on the need to disclose certain documents or the interpretation to be given to a question posed to the expert).
At the end of the expert phase, the court-appointed expert submits a written report containing its findings and conclusions regarding the questions posed by the court. The final court decision adjudicating the claim typically relies on the findings and conclusions of the court-appointed expert, but the court is not bound by them. Courts may depart from the findings and conclusions of the court-appointed expert and may also decide to request a supplement to the expert report or order that a new expert phase take place if there are further technical issues to address or re-address.
Typically, an expert phase is very complex and can last from a minimum of six months to (well) over a year.
Damages are typically assessed by a court-appointed expert in the context of an expert phase (see 7.2 Expert Witness Role and Procedure). Experts normally follow the guidelines set out in the Commission’s 2013 Practical Guide on quantifying antitrust harm in damages actions.
Courts have discretion over the assessment of damages, and while they tend to rely on the findings and conclusions of court-appointed experts, they may also assess damages based on equitable principles, although they rarely do so in full.
As noted previously in 2.3 Impact of Competition Authorities, the Damages Decree allows courts to seek the ICA’s assistance for the quantification of damages. However, courts appear to be reluctant to do so, as they generally prefer to appoint an expert to assess damages.
Under general principles of Italian (and EU) law, damages should be compensated in full, but overcompensation is prohibited (see 2.5 Pass-On Defence). As a result, punitive, multiple and exemplary damages are not available under Italian law. There is however one (limited) exception: if punitive damages are awarded in a foreign ruling, under certain conditions that ruling may be enforced in Italy.
Passing-on is an important part of the assessment of damages, provided that the defence has been raised in a timely manner by the defendant(s) (see also 2.5 Pass-On Defence).
Experts are expected to follow the methodologies set out in the Commission’s 2013 Practical Guide on quantifying antitrust harm in damages actions, and in the 2019 Guidelines for national courts on how to estimate the share of overcharge that was passed on to the indirect purchaser.
The assessment of damages typically includes calculation of interest. Under Italian law, interest accrues from the date on which the harmful event occurred (ie, when the infringement took place) to the date on which payment is made.
Legal interest is typically due under Article 1224 of the Italian Civil Code, based on an interest rate that is updated annually and is currently 2.5%. From the time the claim is filed in court, the higher interest rate for payment delays in commercial transactions (which is updated every six months and is currently 12.25%) applies.
On top of interest, successful claimants are also entitled to monetary revaluation (rivalutazione monetaria). Monetary revaluation is intended to adjust the monetary value of damages incurred in the past to the date they are actually awarded. It is calculated on a yearly basis, normally applying an index set out by the Italian National Institute for Statistics and reflecting the variation of consumer prices over time.
Antitrust liability in Italy is joint and several among infringers. Accordingly, claimants are entitled to seek full compensation from any of the infringers, both under a general principle of Italian law (Article 2055 of the Italian Civil Code) and under the Damages Decree (Article 9).
The Damages Decree provides a number of exceptions to the joint and several liability among infringers, namely in the following cases.
Nonetheless, both immunity recipients and SMEs remain jointly and severally liable vis-à-vis damaged parties, other than their respective direct and indirect purchasers, if such parties cannot obtain full compensation from other infringers.
In the case of a partial settlement with one or some of the infringers, claimants cannot seek payment of the settlement amount from non-settling infringers, but they can seek compensation for the damages that were not settled. However, if the non-settling infringers are not able to pay the compensation they owe to claimants because they are insolvent, claimants can seek compensation from the settling infringer(s) unless the settlement agreement provided otherwise.
Under the general principle set out in Article 2055 of the Italian Civil Code, in the case of joint and several tort liability, the party that has compensated the damage has a contribution claim against the other infringers. The share of liability of each infringer is based on the seriousness of its respective fault and the related consequences. If the entity of the various shares of liability cannot be ascertained, shares are presumed to be identical.
The Damages Decree contains additional specific rules for antitrust claims, providing (in Articles 9 and 16) that the following apply.
From a procedural standpoint, a contribution may be sought:
Injunctive relief, including without notice to the other party, is generally available under Italian law subject to the claimant showing that:
However, injunctive relief is not a remedy normally available for compensation of damages, including in antitrust litigation cases, as compensation and payment of damages can normally be obtained only after a full-fledged determination and assessment of the same.
Methods of alternative dispute-resolution are generally available under Italian law, including in the context of private antitrust litigation. They include:
Arbitration is governed by the Italian Civil Procedure Code. While the parties can resort to arbitration to resolve disputes concerning antitrust matters, arbitration is rarely used in practice for antitrust disputes, unless the relevant parties are bound by a contract containing an arbitration clause that is sufficiently broad in its scope.
Mediation is governed by Legislative Decree No. 28 of 4 March 2010 and can also be used for antitrust disputes subject to the agreement of the parties (as it is not mandatory for antitrust disputes).
Assisted negotiation (negoziazione assistita) is a special dispute-resolution mechanism governed by Law Decree No. 132 of 12 September 2014. It involves the parties and their lawyers, and entails an agreement to co-operate in good faith with a view to settling the dispute amicably. Assisted negotiation is also non-mandatory in the case of antitrust disputes.
Litigation funding is available in Italy and, despite being on the rise recently (see the Italian Trends & Developments chapter in this guide), it is still not specifically regulated.
The only (limited) specific regulation concerns representative actions (see 4.1 Statutory Basis), in relation to which the writ of summons must disclose any financing obtained from third parties so as to allow the court to assess any possible conflict of interest.
Under Italian law, the award of costs depends on the outcome of the proceedings. Losing parties are normally ordered to refund the costs incurred by winning parties. However, courts may order that each party bear its own costs, particularly if none of the parties is a clear winner or loser or if the case concerned novel or controversial legal issues.
Costs include legal costs (based on an official tariff set out in a Ministerial Decree) and court fees, and other costs related to the proceedings (including fees of court-appointed experts). Courts have significant discretion in quantifying the costs to be awarded and may take into account various factors, including the value of the claim, the number of parties involved, the importance and complexity of the case and the extent of the work of the parties’ counsel.
First-instance judgments may be appealed before the appeal courts of Milan, Rome or Naples, depending on which Specialized Sections adjudicated the claim at first instance (see 2.2 Courts).
The deadline for filing an appeal is:
Appeal courts may review the first-instance judgment on any point of fact and law specifically raised in the appeal.
Judgments of appeal courts may be further appealed before the Italian Supreme Court within:
Appeals before the Italian Supreme Court can only be based on points of law.
Please see the Italian Trends & Developments chapter in this guide.
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https://www.clearygottlieb.comTrends
Antitrust litigation in Italy is on the rise, particularly following the approval of procedural rules that are intended to facilitate claims. As a result, new players are entering the market to exploit new opportunities. On the other hand, courts may not have the appropriate resources to address an increasing number of claims, and there may be a need to ensure consistency in decision-making practice. Each of these aspects is addressed below.
Antitrust litigation is on the rise
Antitrust litigation in Italy is on the rise, especially in relation to follow-on cases (ie, cases brought following an infringement decision of a competition authority) as opposed to standalone cases (ie, cases brought without a previous finding of an infringement by a competition authority).
As in the rest of Europe, and unlike in the United States, private enforcement of antitrust law in Italy has been less of an issue for undertakings than public enforcement and administrative fines. Private enforcement has developed gradually over the years, with an increase in cases following a decision of the Italian Competition Authority (ICA) in 2000 concerning the private insurance sector. Nearly every person who owned a car in Italy in the 1990s was potentially entitled to ask for damages. While no official data appears to be available regarding the overall number of cases that were filed, they appear to be in the thousands.
The adoption of Directive 2014/104/EU and its national implementing measure, Legislative Decree No 3/2017 (the “Damages Decree”), led to a significant increase in follow-on cases. The purpose of the legislation is to make it easier for claimants to seek antitrust damages. However, the recent increase in cases is arguably also due to two infringement decisions, namely the Trucks decision of the European Commission (case AT39824) and the Corrugated Cardboard decision of the ICA (case I805). Considering the products involved and the temporal scope of these two decisions, the number of potential claimants was vast.
New opportunities and players
Whether the trend in antitrust litigation will continue to increase largely depends on the enforcement actions that the ICA and the European Commission will take in the upcoming years. The ICA is currently investigating only five possible infringements relating to anti-competitive agreements. Not all of them seem to concern a cartel, which is the type of infringement that is most likely to result in widespread follow-on cases.
The increase in antitrust litigation creates opportunities for a variety of players in the advisory sector.
In relation to legal advisors, the new plaintiff-friendly legislation and the large pool of potential claimants have led a number of new law firms to focus on, and specialise in, representing claimants. Law firms with an established antitrust practice are typically hired by the defendants at an early stage in the process, namely for the defence before the ICA or the European Commission.
For similar reasons, various economic advisory firms specialising in antitrust matters have recently opened offices in Italy or expanded their Italian practice and local presence.
The same goes for litigation funders, which have begun to actively reach out to potential claimants, proposing a wide range of funding arrangements.
Further opportunities may be expected due to a recent reform in the collective and class action systems; this was meant to make these types of actions more widely available, including potentially for antitrust damages claims and not only for small consumer claims.
Specialisation and resources
Pursuant to the Damages Decree, all private enforcement actions have to be brought before the Specialized Sections for business matters of the courts of Milan, Naples or Rome. This is certainly a welcome development, as it creates valuable expertise within specific courts.
On the other hand, concentrating private enforcement actions before three courts (with the Milan court covering the entirety of Northern Italy, a particularly active area in terms of business) creates a massive workload, requiring resources that are currently lacking (in terms of both the number of judges and supporting staff). As this may have implications for the time required to adjudicate claims, lawyers assisting potential claimants in connection with the Italian Corrugated Cardboard case are rumoured to be considering bringing their cases before Spanish courts, on the assumption that the latter may be in a position to award damages more expeditiously.
Similar issues arise concerning the appointment of experts by courts. Nearly all antitrust litigation cases in Italy go through an expert phase, where the courts (and the parties) appoint experts to deal with technical issues, including by performing economic and econometric analyses to estimate overcharge and pass-on rates. However, there is currently a general perception that the number of experts available in Italy with the required expertise and skills may not be adequate to address the increasing number of cases, which may affect the quality of the expert support that the courts need in these types of cases.
Ensuring consistency of decisions
While each case necessarily has its own particular aspects, the fact that several parallel claims can be brought on the basis of the same infringement decision requires consistency among the judgments to ensure both fair treatment for the parties involved and some degree of predictability regarding particular types of disputes.
Consistency may not be easy to achieve without specific procedural tools or other arrangements to ensure it. Notably, for example, with respect to infringement decisions of the ICA, no system equivalent to the referral for a preliminary ruling under Article 269 of the Treaty on the Functioning of the European Union (whereby courts of the member states may seek from the European Court of Justice an official interpretation of certain EU acts, including infringement decisions of the European Commission) is available. Accordingly, there is no way to obtain an official, public and binding interpretation of infringement decisions of the ICA, as may be needed for certain aspects of such decisions.
According to the Damages Decree, courts may only ask the ICA for guidance with respect to how to estimate damages in individual cases. However, courts appear to be reluctant to do so and tend to appoint experts (who may differ in expertise and background) for this task.
Developments
The most important development regarding antitrust civil litigation was the adoption of the Damages Decree in 2017, which introduced new procedural and substantive rules that are described in the Italian Law & Practice chapter in this guide.
Other more recent developments include the rulings of the Italian Supreme Court summarised below, which are or may become relevant to antitrust litigation.
Powers of court-appointed experts (Judgment No. 3086 of 1 February 2022)
As noted above, nearly all private antitrust enforcement cases in Italy go through an expert phase, where the court and the parties appoint experts to deal with technical issues, including by performing economic and econometric analyses to estimate overcharge and pass-on rates. In other words, the expert phase is a crucial step in antitrust litigation.
It follows that the remit and powers of the expert appointed by the court in each case may have a significant impact on its outcome.
In Judgment No. 3086/2022, which was issued in the context of a non-antitrust dispute, the Italian Supreme Court provided clarifications on those aspects that are also relevant for antitrust disputes.
The Italian Supreme Court ruled that court-appointed experts are not entitled to extend their technical analysis beyond the scope set out by the court, particularly insofar as the “main” or “primary” facts of a given case are concerned.
However, experts are entitled to explore and assess the so-called secondary facts of the case, including by acquiring new documents that they consider necessary to fulfil their task in each given case.
These principles have practical implications in antitrust litigation, where courts tend to entrust the experts they appoint with broad powers regarding both the assessment of the evidence already on the record and the search for additional evidence, including by delegating to the experts the selection of documents that are sought by one of the parties from the other(s) through requests for document production.
Statute of limitations (Judgment No. 1816 of 20 January 2023 and Judgment No. 5232 of 28 February 2024)
Two recent rulings of the Italian Supreme Court addressed the statute of limitations applicable to follow-on claims.
The first ruling (Judgment No. 1816 of 20 January 2023) arose from actions for damages brought in 2014 by certain airlines against the operator of the Milan Malpensa and Milan Linate airports, which the ICA had fined in 2008 for an abuse of dominant position, consisting of the application of unfair and excessive prices and conditions. In particular, the airlines alleged that they had been harmed by the fact that the airport manager had not reduced airport tariffs for them as it had done for other competing airlines.
Like both the first-instance court and the second-instance court, the Italian Supreme Court ruled that the five-year limitation period applicable to follow-on damages claims also applies when the relevant antitrust infringement occurred in the context of a contractual relationship between the infringer and one of its clients, irrespective of the fact that the limitation period for contractual claims is normally ten years.
The Italian Supreme Court also noted that the Damages Decree (in particular, Articles 8 and 14), although not applicable in the case concerned, confirmed both the tort nature of claims for antitrust damages and the five-year limitation period applicable to them.
The second ruling (Judgment No. 5232 of 28 February 2024) was issued in the context of a follow-on case based on the European Commission’s Trucks decision. In that decision, dated July 2016, the European Commission had fined certain truck manufacturers for colluding for over 14 years on truck pricing, and on the timing and passing-on of the costs of compliance with emission rules.
In this context, the Italian Supreme Court held that the new statute of limitation rules set out in the Damages Decree applied to a claim for damages filed in 2018, even though the claim concerned the purchase of a truck in 2008 (ie, before the Damages Decree was enacted in 2017).
The Supreme Court noted that, in principle, the rules set out in Article 8 of the Damages Decree (which provide for a five-year limitation period starting after the end of the infringement and when the damaged party is or should be aware of its ability to bring a claim) should not apply retroactively. Nonetheless, it concluded that Article 8 may apply to claims for damages that were not time-barred on 27 December 2016 – ie, when member states were required to implement Directive 2014/104/EU (in relation to which the Damages Decree is the national implementing measure in Italy). In the case concerned, the Italian Supreme Court found that the claimant could not have had sufficient knowledge of the infringement before the adoption of the European Commission’s Trucks decision in July 2016. As a result, the limitation period was to be assessed under Article 8 and had not expired at the time the claim was filed in 2018 (ie, only two years after the European Commission’s decision).
Standard of proof for the causal link between an antitrust infringement and the damages to be awarded (Judgment No. 9 of 2 January 2024)
In Judgment No. 9 of 2 January 2024, the Italian Supreme Court confirmed that the causal link between anti-competitive conduct and the damages sought can be inferred on the basis of the “more likely than not” criterion.
The dispute concerned arose from a 2012 decision in which the ICA found that a pharmaceutical company had engaged in exclusionary conduct against manufacturers of certain generic drugs. In 2014, the Italian Ministry of Health and the Italian Ministry of Economy and Finance sued the pharmaceutical company for damages, arguing that its conduct delayed the marketing of (cheaper) generic drugs. The first-instance court rejected the claim on account, inter alia, of the fact that the claimants had provided no evidence other than the findings of the ICA to show the causal link between the conduct of the pharmaceutical company and the alleged damage. However, ICA decisions have no special evidentiary value in relation to this aspect; therefore, the court found that the claimants had not met the required standard of proof. The second-instance court overturned the lower court’s decision and held that the evidence referred to in the ICA decision was sufficient to establish the causal link to the required legal standard, awarding the claimants over EUR13 million in damages.
The Italian Supreme Court upheld the second-instance ruling. In particular, the Italian Supreme Court ruled that, while ICA decisions have no special evidentiary value beyond the finding of a competition law infringement, it is for the relevant civil court to determine, based on the “more likely than not criterion” (più probabile che non), whether such decisions may nonetheless be sufficient to prove the causal link between the infringement and the damage, also taking into account any other available evidence.
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